Council of Ministers (Article 74

Article 74 of the Constitution provides that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice. The Council of Ministers is made up of the Prime Minister and other Ministers. Cabinet Ministers, Ministers of State, and Deputy Ministers are the three types of ministers. The President of India appoints each of them.

Council Of Ministers - Union Executive - Historical Background

The Indian Constitution has borrowed the British Parliamentary form of Government in which the real executive of the Indian Union is the Council of Ministers headed by the Prime Minister, which actually exercises the executive authority, theoretically vested by the Constitution, in the President.

Was started by Lord Canning in Indian Councils Act 1861.

Council Of Ministers - Union Executive - Constitutional Provisions

Article 74: Council of Ministers to aid and advice President-
Clause (1) there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:

Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.

Clause (2) the question whether any and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.

Article 75(1) of the Constitution says that “the Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.”

Other provisions

Article	Provision
Article 77	Conduct of business of the Government of India
Article 78	Duties of the Prime Minister as respects the furnishing of information to the President, etc.
Article 88	Rights of Ministers in respects Houses.

Formation Of Council Of Ministers:

The process of formation of the Council of Ministers begins with the appointment of the Prime Minister by the President.
While appointing the Prime Minister, the President will have little opportunity to exercise his own discretion. He will have to be the leader of the party which secures a majority in the Lok Sabha.
Only when none of the parties represented in the Lok Sabha commands a clear majority, the President may have some discretion within the bounds of conventions.
The section of other Ministers, in practice, is entirely the discretion of the Prime Minister. The President has to simply accept the recommendations of the Prime Minister.
The Prime Minister selects other Ministers. The President has to accept the team chosen by him.

Qualification

Qualification Of Council Of Minister:

Minister must be a member of either House of Parliament.

If a person who is not a member of either House of the Parliament is appointed as a Minister, he shall cease to be a minister after six months unless in the meanwhile Minister has to get himself/herself elected to either House of Parliament within six months.

Disqualification

Disqualification Of Council Of Minister Due To Defection:

Also, if a member of Parliament has been disqualified on the ground of defection, he would not be eligible to become a Minister. But if he again gets elected in the next freshly held Parliamentary election then he will be eligible to become a minister.

Participation in proceedings

Participation Of Council Of Minister In Parliamentary Proceeding:

The Ministers may be chosen from members of either House.

A Minister who is a member of one House has a right to speak in and to take part in the proceedings of the other House though he has no right to vote in the house of which he is not a member.

Salary

Salary Of Council Of Minister:

The constitution declares that The salaries and allowances of ministers are such as the Parliament may from time to time determined by law. As a result of a law established by Parliament in 1985, each minister is entitled to the same pay and allowances as a member of Parliament.

Strength

Strength Of Council Of Ministers:

Its size and classification are not mentioned in the Constitution.

Its size is determined by the Prime Minister according to the exigencies of the time and requirements of the situation.

But as per 91st Constitutional Amendment Act, 2003, it should not exceed 15% of the total strength of the Lok Sabha.

Term of Office

Term Of Office Of Council Of Ministers:

Ministers are appointed by the President and remain at his pleasure. It only signifies something if they continue to have the support of the Lok Sabha's majority. Any minister can be asked to resign by the Prime Minister at any moment, and the latter must obey.

The Prime Minister has the authority to suggest the dismissal of any minister to the President, and the President always follows his advice. When the Prime Minister resigns, the whole Council of Ministers resigns with him.

As a result, the ministry's or a minister's tenure is not fixed. A ministry/each minister continues in office for as long as the majority in the Lok Sabha has confidence in it, or as long as the Prime Minister does not quit.

The maximum duration for which a minister can be in office is five years or one complete Lok Sabha term.

Even if the same party that won a majority in the previous Lok Sabha returns with a majority in the next Lok Sabha, a new cabinet must be formed after each new general election to the Lok Sabha.

Categories of Ministers

Categories Of Ministers:

Council of Ministers is not a single body but a composite body, consisting of ministers of different ranks. The constitution does not classify the members of the Council of Ministers into different ranks. The classification is done informally following British practice.

Cabinet Minister:
They are experienced Ministers who hold very important portfolios like Home, Finance, Defence, Agriculture, Foreign Affairs, etc.

Their number varies from time to time but it is generally in the range of 15 to 20.

A Cabinet Minister always heads a Ministry and is given independent charge of it, unless he is appointed a Minister without portfolio. He attends the meeting of the Cabinet on his own right and is generally assisted by a Minister of State or a Deputy Minister or both.

Minister of State:

A Minister of State may be given independent charge of a Ministry.

He cannot attend the meetings of the Cabinet on his own right but can attend if invited.

Deputy Minister:

A Deputy Minister is a junior member of the Council of Minster and not given independent charge of any department.

He is put under the charge of either minister of the cabinet rank or that of the Minister of State so that he gets proper training.

He does not attend a Cabinet meeting.

Power

Power Of Council Of Ministers:

Executive Power:

The Council of Ministers exercises all of the President of India's executive functions.

The Cabinet develops the policies that will be presented to Parliament for approval. It obtains Parliamentary approval for these measures and then implements them. It manages the Union's administration in accordance with authorized policies. All government departments are coordinated and controlled by the Cabinet/Prime Minister. The Cabinet is in charge of formulating foreign policy as well as all domestic policies deemed important for the country's overall development.

The Council of Ministers is collectively responsible to the Lok Sabha for all of its policies and decisions. Any failure on any front could lead to the ministry's demise.

Emergency Power:

The President always acts on the recommendation of the Prime Minister and his Council of Ministers when he exercises Emergency Powers.

Only with the Cabinet's approval may the President declare an emergency. In accordance with the Prime Minister's and his Council of Ministers' advice, he takes all necessary steps to address the emergency.

Legislative Power:

Despite the fact that the Union's legislative powers are in the hands of Parliament, the Council of Ministers plays an essential role in the legislative process. Ministers are members of the Parliament as well as heads of government ministries. They participate fully and actively in the legislative process.

They are the ones who introduce and pilot the majority of the bills. The Parliament spends 95 percent of its time dealing with governmental business, which is overseen by ministers. Because the ministry has the backing of the majority in Parliament, a measure that is not backed by the Council of Ministers cannot be passed.

If the Lok Sabha passes a bill that the Council of Ministers does not support or rejects a bill that the Council of Ministers supports, or rejects the Cabinet's budget, it is considered a vote of no confidence in the government, and the whole Council of Ministers resigns. While doing so, the Prime Minister/Cabinet might recommend to the President that the Lok Sabha be dissolved.

Responsibility

Responsibility Of Council Of Ministers

Collective Responsibility:

The basic principle of Parliamentary or Cabinet form of Government on the principle of collective responsibility. Collective cabinet responsibility refers to the accepted conduct of Government Ministers as a part of the Cabinet. In England, it works on well-established conventions. In India, this principle is ensured by making specific provisions in the Constitution.

Article 75(3) states that “the Council of Ministers is collectively responsible to the House of the People.”

Confidence of the House: A government can remain in office for so long as it retains the confidence of the House of People, confidence which can be assumed unless and until proven otherwise by a confidence vote. So, if a decision of a particular Ministry on a policy matter is defeated in a Lok Sabha, it is not the Minister who resigns, but the whole Council of Ministers resign. The Council of Ministers sinks and swims together. It stands or falls together.

The individual Minister may have differences among themselves on certain issues, but once a decision is taken by Cabinet, it becomes the joint decision of all the Ministers. It is the duty of each and every Minister to stand by it and support it in Parliament and outside.

If any minister disagrees with a cabinet decision and is not prepared to defend it, he must resign.

In 1953, B.R. Ambedkar resigned due to disagreements with his colleagues over the Hindu Code Bill.

Due to his objection to the Muslim Women (Protection of Rights on Divorce) Act of 1986, Arif Mohammed resigned.

The basic idea behind the principle of collective responsibility is to provide unity and homogeneity to the Cabinet so that the functioning of the Government is not retarded.

Individual Responsibility:

Though the Ministers are collectively responsible to the Lok Sabha, they shall be individually responsible to the Head of the State i.e., President.

Article 75(2) declares that the Ministers shall be liable to be removed by the President at any time.

However, since the President has to act on the advice of the Prime Minister, in practice, this power is exercised by the Prime Minister. The Prime Minister ask the Minister to resign.

No Legal Responsibility:

The system of legal responsibility is not prescribed in the Indian Constitution.

In the UK the monarch cannot do any public act without the counter signature of a minister who is legally responsible for the act. If the act violates the law, the minister is responsible in a court of law.

In India, an order of the President for a public act should not be countersigned by a minister. It is left to the President to make rules as to how his orders are to be authenticated.

Further the courts are barred from inquiring into the nature of advice rendered by the ministers.

Position of the Council of Ministers:

In the Indian political system, the Council of Ministers has a significant and central role as the real and powerful executive.

The Council of Ministers really exercises all of the President of India's powers.

The Cabinet is the most powerful entity in the Council of Ministers. All of these powers are exercised by the central institution. The Cabinet is in charge of directing, supervising, and controlling the creation of national policies as well as the administration's operations.

As the maker of all policies, the director of administration and the supreme coordinator of government activity, the Cabinet enjoys an enviable position. It is indeed the steering wheel of the ship of the state. It is the centre of power and the most powerful institution of the Indian political system.

Judgement related to Council of Ministers:

In S.R. Chauhan vs State of Punjab (2001), Supreme Court held that a non-member cannot be re-appointed without being elected. However, a Non-member can also become a part of the council of ministers for a maximum of 6 months.

The oath by Devi Lal as Deputy Prime Minister in 1990 was challenged as being unconstitutional as the Constitution provides only for the Prime Minister and other ministers.

The Supreme Court upheld the oath as valid and stated that describing a person as Deputy PM is descriptive only and such description does not confer on him any powers of PM.

SC ruled that the description of a minister as Deputy Prime Ministers or any other type of minister such as minister of state or deputy minister of which there is no mention in the Constitution does not vitiate the oath taken by him so long as the substantive part of the oath is correct.

LAW CHECKPOINT

Sunday, December 18, 2022